Secrecy bill: to be or not to be - we're about to find out

Osiame Molefe

Osiame Molefe

Osiame Molefe is a writer with a keen interest in the space where personal and societal ambitions intersect with technology, politics and economics. That intersect right now, in South Africa, has brought him to observing, researching and writing on racial and gender inequality, and how well, or poorly, dialogue around these issues takes place. His column deals with these and issues tangential. When he is not writing news, analysis and opinion, he reads speculative fiction and writes some, too. Rumour is he single-handedly keeps the South African sparkling wine industry afloat.

In a former life, he worked as a chartered accountant in New York, Bermuda and Johannesburg, but has since fled that industry in pursuit of a life less grey. He holds a bachelors degree in accountancy from Rhodes University, but don’t let that fool you into believing he has a head for numbers. He does not.

The highly controversial Protection of Information Bill could be placed on ice on Tuesday when it is tabled in the National Assembly, following a dramatic last-minute about-turn by ruling party leaders, indicating that pressure by groups like the Right2Know campaign, which marched against the bill this weekend, and more significantly, the ANC’s ally Cosatu, has paid off. By OSIAME MOLEFE and CARIEN DU PLESSIS.

Whether it is fair to parallel the ANC-led government’s apparent zeal for secrecy and its critical view of the media to that of the apartheid-era government’s became moot on Saturday as a crowd of over 1,500 people took part in the Right2Know campaign’s march against the so-dubbed “secrecy bill”. Singing liberation struggle songs, the crowd marched from the historic District Six area to the foot of the Louis Botha statue outside Parliament.

And the ANC might just have been listening. In a rare move, the ruling party has called its MPs into Parliament on a Monday afternoon for an hour-long caucus about the bill, after which a press conference is scheduled. This indicates that a big announcement could be in the offing, something members of the party’s national executive committee confirmed (but they didn’t want to go on the record or talk much about it before MPs are officially informed). At its meeting in Pretoria over the weekend, the committee apparently decided that the bill should, after all, not be passed this week, but debated just a wee bit further within the alliance structures.

This move is likely to be aimed at appeasing Cosatu, which has supported this weekend’s march and indicated that it would support a constitutional challenge to the bill if need be. The ANC, which is being torn apart by internal battles in the run-up to its elective conference in December next year, apparently needs all the goodwill it can get, and it’s willing to go to some length to get it.

One ANC insider, who wasn’t privy to this weekend’s decision, said a much quicker way would be to pass the bill through the houses of Parliament and then for Zuma to refer it back due to constitutional concerns. But perhaps the ANC didn’t want to risk a possibly divisive vote in the National Assembly, or didn’t want to risk alienating Cosatu further. Still, a move to reverse the passing of the bill would be contrary to the party’s dogged determination to date to see it passed.

The bill has come a long way since it was first introduced. According to the Right2Know campaign, it still fails the freedom test in few major ways. For one, it lacks an independent review mechanism for classified information. As it stands, appeals for declassification are heard only by the minister of state security who classified the information in the first place. Another significant issue is that the bill does not protect those who disclose classified information in the public interest.

Despite arguments to the contrary, ANC MP Lewellyn Landers insisted during the parliamentary committee debates on the bill that the public interest defence is a thinly veiled attempt to allow journalists to publish classified information. He said journalists, like everyone else, should apply to the minister to declassify information if they felt publishing it would be for the public good.

Constitutional law professor Pierre de Vos told the Daily Maverick that the debate over the public interest defence is not a rational argument because the protection afforded by the public interest defence extends beyond journalists and protects ordinary whistleblowers. He said, “It has become an emotional argument because people feel the media is exposing some of the things they do and criticising them too harshly. And that is why the majority party doesn’t want it”. The effect of the current bill on whistleblowers is still so severe that it may not stand up to constitutional challenge, according to de Vos.

At an academics on freedom seminar at earlier in the week, UCT vice-chancellor Dr Max Price and head of philosophy Professor David Benatar suggested that the problem may lie in the possible misinterpretation of public interest as something in which the public is interested – which could be anything. But de Vos and Murray Hunter, Right2Know coordinator, suggest that the ANC understand fully what a public interest defence means and are refusing to include it in the bill to silence the media at a cost to the ordinary citizen.

Former minister intelligence services Ronnie Kasrils also spoke outside Parliament on Saturday and expressed the same view. He said, “This all-embracing secrecy bill is not about the real secrecies that must be defended. It is to (protect) those silly leaders who have eggs on their face, who have been exposed by media for doing foolish and embarrassing things.”

Activist Zackie Achmat urged Saturday’s crowd to break any law that is unjust. He and Kasrils likened the Right2Know campaign to the many campaigns against apartheid-era secrecy. This accusation – of being like the pigs in Orwell’s Animal farm, whether an overstatement or not and coming from two anti-apartheid activists – should strike a nerve for those within the ANC who fought against the very thing they are now accused of becoming. But Animal Farm tells us that this may be of no use. The pigs who dared speak out against the changes within their ranks were driven out, silenced and executed. Eventually no one could tell the pigs from the oppressive humans.

The diversity of the group – religious leaders, civil society organisations, members of the media, artists, writers, community organisations, students – underlined how broad a cross-section of the population believe they will be affected by the bill. But not all who attended were welcome.

The Democratic Alliance, including Premier Helen Zille and Cape Town mayor Patricia de Lille, attended the march in large numbers wearing their party’s blue t-shirts. DA federal chairperson Wilmot James tweeted during the march that Achmat had called him a “thug” for showing up to the march in a DA t-shirt. And during the speeches outside Parliament, several speakers warned against making the fight for access to information a politically aligned campaign.

Mathilda Groepe, coordinator of the Blikkiesdorp anti-eviction campaign, said that the issues over access to information are not just with the ANC. She said that even where the DA governs, communities like hers still struggle for access to information on, for example, the anti-land invasion unit’s eviction processes, charges brought against those who have been arrested in protests, housing lists and municipalities’ plans for providing basic services to their area. Warning against the danger the bill presents to her community, she said, “You know people have been killed while being in (police) custody. Now if this bill is going to be passed, you won’t be able to ask what happened because they will tell you it is classified”.

Xola Skosana, pastor of Way of Life Church in Khayelitsha, said that while the Right2Know campaign is commendable, the question still remains what we do with what we know. “We know so much already but very little action comes from ourselves. We know that there is a backlog of… houses in Cape Town. What are we doing about that? We know that there is continual separate development in this country. What are we doing about that?” He said that his community is fighting for justice and human dignity, and is tired of being caught up in the petty politics between the ANC and the DA. DM

Osiame Molefe is a writer with a keen interest in the space where personal and societal ambitions intersect with technology, politics and economics. That intersect right now, in South Africa, has brought him to observing, researching and writing on racial and gender inequality, and how well, or poorly, dialogue around these issues takes place. His column deals with these and issues tangential. When he is not writing news, analysis and opinion, he reads speculative fiction and writes some, too. Rumour is he single-handedly keeps the South African sparkling wine industry afloat.

In a former life, he worked as a chartered accountant in New York, Bermuda and Johannesburg, but has since fled that industry in pursuit of a life less grey. He holds a bachelors degree in accountancy from Rhodes University, but don’t let that fool you into believing he has a head for numbers. He does not.